98-678: Tobacco Control: Enforcement and Effectiveness of Federal and State Youth Access Laws

C. Stephen Redhead and Joy Austin-Lane
Science, Technology, and Medicine Division

Updated August 19, 1998

Background

Preventing adolescents from smoking is one of the primary objectives of the public health community's tobacco control efforts. Most adult smokers begin smoking during childhood or adolescence, and individuals who reach age 18 without having smoked are unlikely to become regular smokers. Since the late 1980s, numerous studies have documented the ease with which youngsters can purchase cigarettes. That has led to an emphasis on limiting youth access to tobacco products in recent federal, state, and local tobacco control policies and programs. The focus on youth access has become all the more urgent in the wake of recent reports that underage smoking rates have increased substantially in recent years. This report briefly reviews youth access policies at the federal and state level, as well as the tobacco industry's response to those efforts. It also summarizes research on the effectiveness of limiting youth access to tobacco and highlights some of the policy issues that have emerged.

State Youth Access Laws

Every state has a minimum age-of-sale law for the legal purchase of cigarettes. Buyers must be at least 18 in all but four states. In Alabama, Alaska, and Utah, a person must be 19 to purchase cigarettes, and in Pennsylvania the legal age for cigarette sales is 21. All state laws include penalties on the business owner, manager, and/or clerk for violating the law. However, a 1994 Institute of Medicine (IOM) report on youth smoking concluded that state minimum age-of-sale laws have gone largely unenforced since their enactment, which in many cases was decades ago. According to the IOM, numerous studies have shown that adolescents purchase cigarettes from a variety of retail outlets at rates averaging about 67% of purchase attempts.

In the past 5 years, states have passed or amended numerous youth access laws in response to federal regulations (see below) and lobbying from antitobacco groups. Forty states and the District of Columbia (DC) restrict the placement of tobacco vending machines (see Table 1), and 43 states and DC restrict the distribution of free samples of tobacco products. In 32 states and DC a retailer must obtain a license to sell tobacco products (see Table 1). The laws of 21 states allow retail licenses to be suspended or revoked for licensees repeatedly caught selling tobacco products to minors. Forty-two states now penalize minors who attempt to purchase tobacco products (see Table 1). Penalties range from fines and/or community service, to driver's license suspension. Five states (AZ, CA, MA, ME, and UT) use a portion of their cigarette excise tax revenues to fund comprehensive tobacco control programs, which include efforts to educate retailers and enforce minimum age-of-sale laws. Local communities have also begun to show a greater interest in enacting and enforcing ordinances that limit minors' access to cigarettes. Several hundred local communities have enacted youth access ordinances, according to Americans for Nonsmokers Rights, a national antismoking advocacy group. In about half of the states, however, local action to restrict youth access to tobacco is limited by state laws that preempt local ordinances (see Table 1).

Synar Amendment

In July 1992, Congress enacted the Synar Amendment as part of the Alcohol, Drug Abuse, and Mental Health Administration Reorganization Act (P.L. 102-321, Section 1926). It requires states to enforce their tobacco minimum age-of-sale laws or risk losing substance abuse block grant funds. The Synar Amendment is administered by the Substance Abuse and Mental Health Services Administration (SAMHSA) and has been an important catalyst for the passage of state tobacco-control legislation. Under Synar, state officials are supervising random, unannounced visits to retail outlets by minors as a means of monitoring retailer compliance. Retailers caught selling tobacco to minors may be fined or have their tobacco licenses suspended. SAMHSA's FY1997 report on Synar showed that 43 states and DC have made baseline assessments of the tobacco sales rate to minors, using methods approved by SAMHSA, and established a target year for achieving the goal of an underage sales rate of no more than 20% (i.e., 80% compliance).⁽²⁾ Four states (FL, ME, NH, and WA) have already achieved that goal (see Table 1).

Food and Drug Administration's (FDA) Tobacco Regulation

In August 1996, the FDA issued a regulation to restrict the labeling, advertising, sale and distribution of cigarettes and smokeless tobacco to children and adolescents. To date, only one of the rule's provisions has taken effect: the sale of tobacco to persons under age 18 is prohibited, and clerks must verify age by checking photo ID of anyone under age 27. The FDA has mailed information about the new tobacco regulation to more than 400,000 retailers, and is contracting with states to assist in enforcement. Under those contracts, states will conduct compliance checks using accompanied minors (similar to Synar). Retailers who are caught selling tobacco to minors will receive an FDA warning letter the first time, followed by steeply increasing fines for each successive violation. In FY1997, 10 states signed agreements with FDA. So far this fiscal year, four of those states have renewed their agreements but only five new states have signed on (see Table 1). FDA hopes to sign agreements with the remaining 35 states in the coming months. On August 14, 1998, a federal appeals court ruled that the FDA has no authority to regulate tobacco products. The Clinton Administration has appealed the decision, which reverses last year's lower court ruling confirming the agency's jurisdiction over tobacco.⁽³⁾

Tobacco and Retail Industry Activities

The tobacco industry and various retail associations have launched a series of retailer-education campaigns to encourage voluntary compliance with youth access laws. The public health community has criticized those efforts as being ineffectual because they lack any enforcement. The We Card program, administered and funded by a coalition of national retailer and wholesaler associations and the Tobacco Institute, is the most recent and comprehensive program. The focus of We Card is educating retailers about state and federal laws. It includes training videos, signs and stickers about minimum age requirements, and calendars to facilitate age determination by store clerks. We Card materials have been sent to over 415,000 retailers nationwide, but use of the materials varies widely. There is very little published information on the impact of We Card on underage tobacco sales. A 1993 study in Massachusetts found that an industry-sponsored education program had no significant effect on sales to minors.⁽⁴⁾ Materials were displayed in only 5% of stores, and sales rates to minors did not differ by program participation (86% sales rate in participating stores vs 88% in nonparticipating stores).

Despite its retailer-education activities, the tobacco industry has supported efforts by state legislatures to preempt local efforts to address youth access. A review of youth access bills introduced in 12 states identified preemption clauses that prohibit local governments from passing stricter local laws. It also found provisions that may hamper enforcement efforts (e.g., by designating a state agency ill-equipped to carry out enforcement) and make successful prosecution difficult (e.g., having to demonstrate intent on the part of a merchant to sell tobacco to minors).

Assessing the Impact of Education and Enforcement Efforts

Effect of Education on Retailer Compliance. Several published studies have assessed the impact of retailer education programs--with and without enforcement--on underage tobacco sales and smoking rates. In the absence of any enforcement, the impact of education programs on retailer compliance appears to be modest and difficult to sustain over time. In California, researchers found that a 6-month educational campaign increased retailer compliance from 26% to 61%.⁽⁵⁾ However, 6 months after the end of the campaign, with no further intervention, the compliance rate had fallen to 41%.

Effect of Enforcement on Retailer Compliance. Many public health researchers believe that without enforcement of youth access laws, retailers will not respond to educational programs because of the substantial profits involved in cigarette sales and the near certainty of not getting caught. Studies indicate that retailer compliance is higher when there is active enforcement of youth access laws (i.e., unannounced compliance checks, and penalties for retailers caught selling to minors). Studies conducted in California and New York reported that enforcement led to significant reductions in sales to minors whereas education alone decreased sales only somewhat.⁽⁶⁾ These studies and others suggest that education plus enforcement may be an effective means of reducing illegal tobacco sales to minors.

Effect of Retailer Compliance on Youth Tobacco Consumption. The key public health question is whether sustained retailer compliance with minimum age-of-sale laws leads to reduced youth tobacco consumption. Studies suggest that retailer compliance may not affect youth consumption unless nearly all stores refuse to sell tobacco to minors. In Woodridge, Illinois, a city ordinance was passed making reductions of youth tobacco sales a priority and requiring retailer compliance checks four times each year. The ordinance was widely supported by the local community, and retailer compliance was close to 100%. Jason et al (1991) found that this tobacco control effort resulted in a 69% decline in youth smoking rates within the city.⁽⁷⁾ Another study in Leominster, Massachusetts found a 42% reduction in youth smoking when vigorous enforcement efforts led to a compliance rate of about 95%.⁽⁸⁾ However, in a recent, two-year study in Massachusetts, three communities that achieved 82% compliance through enforcement failed to see any reduction in youth tobacco consumption.⁽⁹⁾ Surveys of the teens using tobacco found that they had changed their buying habits. They began buying cigarettes from retailers in neighboring communities or indirectly through third parties, such as older friends or relatives, in addition to seeking out retailers in their own community who were known to sell to teenagers.

All three studies have been criticized for not having a nationally representative sample or controlling for factors that may affect retailer compliance, such as community and school-based antismoking programs and retailer compliance in nearby communities. A new study is underway to examine local and state youth access initiatives in a national sample of youth. The researchers report that youth smoking rates tend to be lower in states where there is active enforcement and higher rates of retailer compliance. They also found that youth smoking rates were higher in states where stricter local ordinances were preempted by state law. The researchers estimate that 80% retailer compliance nationwide would reduce the national underage smoking rate by about 18%.⁽¹⁰⁾

Congressional Activity and Public Policy Issues

Several tobacco bills have been introduced to implement last year's proposed settlement between the state attorneys general and the tobacco companies. The bills set target dates for reducing underage smoking and fine the manufacturers if those targets are not met. In addition, they codify FDA's tobacco regulation and expand the Synar Amendment by increasing the retailer compliance target to 90% (i.e., an underage sales rate of no more than 10%), mandating retailer licensing, and requiring monthly unannounced inspections and strict enforcement of state laws.⁽¹¹⁾ The recent expansion of federal, state, and local activities and programs to address youth access to cigarettes raises several important issues that remain unresolved:

• There is limited evidence to support the underlying assumption that improving retailer compliance will reduce youth access to tobacco, which in turn will reduce underage smoking rates. More research on the effectiveness of youth access policies is needed given the enormous variation that exists across the country in how such policies are implemented and enforced. Is the Synar goal of 80% compliance sufficiently high to reduce youth access? Does the existence of a nearby jurisdiction with easy tobacco access for youngsters negate the impact of enforcement efforts?
• Efforts to limit direct youth access to commercial sources of tobacco fail to address noncommercial and social sources of tobacco (e.g., other adolescents, parents, older friends). How significant are these alternative sources, and might they become more important as commercial sources are restricted?
• The current emphasis on restricting youth access may help glamorize tobacco use as adult behavior and could arguably divert resources away from what many consider the more comprehensive goal of eliminating tobacco use in society as a whole. Many researchers believe that, to be successful, restricting youth access must be part of a comprehensive, national tobacco-control campaign.

Table 1: Selected Federal and State Efforts to Limit Youth Access to Tobacco

Sources: SAMHSA's "Synar Regulation Implementation, Report to Congress on FY1997 State Compliance"; FDA Press Releases; and American Lung Association's "State Legislated Actions on Tobacco Issues 1997."

Footnotes

2. ^(back)Seven states' legislatures (AR, KY, MT, NV, ND, OR, and TX) did not meet in 1993 or 1994 and were given a one-year extension by SAMHSA to develop baseline rates and negotiate targets. For more information, see http://www.samhsa.gov/csap/synar/faq.htm.

3. ^(back)For more information on the FDA tobacco regulation, including the recent federal appeals court ruling, see the CRS tobacco electronic briefing book http://www.congress.gov/brbk/html/ ebtobtop.html.

4. ^(back)Joseph DiFranza and Linda Brown, "The Tobacco Institute's 'It's the Law' Campaign: Has It Halted Illegal Sales of Tobacco to Children?" American Journal of Public Health 82 (1993): 1271­1273.

5. ^(back)Ellen Feighery et al., "The Effects of Combining Education and Enforcement to Reduce Tobacco Sales to Minors: A Study of Four Northern California Communities," Journal of the American Medical Association 266 (1991): 3168­3171.

6. ^(back)Donald Gemson et al., "Laying Down the Law: Reducing Illegal Tobacco Sales to Minors in Central Harlem," American Journal of Public Health 88 (1998): 936­939.

7. ^(back)Leonard Jason et al., "Active Enforcement of Cigarette Control Laws in the Prevention of Cigarette Sales to Minors," Journal of the American Medical Association 266 (1991): 3159­3161.

8. ^(back)Joseph DiFranza et al., "Reducing Youth Access to Tobacco - Letters to the Editor," Tobacco Control 1 (1992): 58.

9. ^(back)Nancy Rigotti et al., "The Effect of Enforcing Tobacco-Sales Laws on Adolescents' Access to Tobacco and Smoking Behavior," New England Journal of Medicine 337 (1997): 1044­51.

10. ^(back)Frank Chaloupka and Rosalie Pacula, "Limiting Youth Access to Tobacco: The Early Impact of the Synar Amendment on Youth Smoking," Manuscript submitted for publication, March 1998, Dept. of Economics, University of Illinois at Chicago.

11. ^(back)For detailed information on the tobacco bills and the proposed settlement, see CRS Report 98-6, Tobacco Legislation in the 105^th Congress: Side-by-Side Comparison of S. 1415, S. 1530, S. 1638, S. 1889, H.R. 3474, and H.R. 3868.